This is an appellate review of a case in which two men, Jeremy Pike and David Scott, were detained after their digital devices were searched upon entry to Canada. When the searches uncovered child pornography, the officers arrested them for the Customs Act offence of importing those illegal goods, then contacted the Peel Regional Police, who charged Pike and Scott with the Criminal Code offences of possessing and importing child pornography Concerns were raised about whether one of Canada’s border laws, section 99(1)(a) of the Customs Act which allows border officers to search travellers’ digital devices without any objective grounds, violates section 8 of the Charter (unreasonable search and seizure). The two men whose devices were searched under this law, and who were consequentially charged with possessing and importing child pornography, challenged the constitutionality of the law.
Pike is a former teacher. Before the charges, he was already a registered sexual offender who had been sentenced to 14 years in prison and stripped of his teacher’s licence for sexually interfering with eight young boys and making and possessing child pornography depicting that abuse; upon release, he left Canada and spent seven months visiting several developing countries, specifically some known destinations for travellers intending to sexually exploit children. Agency Border Services officers searched all 11 working devices belonging to Pike and found child pornography on one of the devices, arrested Pike for violating the Customs Act, and contacted Peel Regional Police, who found over 1,600 images depicting the sexual abuse and exploitation of children on two of Pike’s device (para. 18-19).
Scott is a 77-year-old retired business executive who had returned to Canada after spending six months at his vacation home in Belize. Border services officers searched his luggage and found 13 digital devices and after obtaining Scott’s passwords, officers then searched his three cell phones, one of the two tablets, and some USB keys. They found a folder that contained written child pornography 55 minutes into the search, then nineteen minutes later, after finding child pornography images, Scott was arrested for violating the Customs Act. The Agency contacted Peel Regional Police, who found approximately 3,000 text, image, and video files depicting the sexual abuse and exploitation of children on Scott’s digital devices (para. 20-21).
Neither Pike nor Scott were advised of their rights to counsel, and in Scott’s case that he was detained or the reasons for his detention, until well into the search and after illegal material had been located. The trial judge ruled that the s. 99(1) of the Custom’s Act was unconstitutional, and that the Agency had breached Pike’s and Scott’s s. 8 Charter right to be free from unreasonable searches and seizures, as well as breaching their s. 10(b) Charter right to counsel and Mr. Scott’s s. 10(a) Charter right to be informed promptly of the reasons for his detention. He excluded from evidence the child pornography files from Pike’s devices and acquitted him of those charges; however, he admitted the files from Scott’s devices, convicted him of importing child pornography (R. v. Scott, 2022 ONSC 5823), and sentenced him to 23 months’ house arrest. The Crown was appealing Pike’s acquittal and seeking leave to appeal the sentence the trial judge imposed on
Scott, while Scott was appealing his conviction. (paras. 22-24).
Issues on appeal were whether:
1. The Customs Act’s authorization of searches of digital devices violates the Charter;
2. The Agency violated Mr. Pike’s and Mr. Scott’s right to counsel;
3. The evidence found on their digital devices is admissible; and
4. The trial judge erred by imposing a conditional sentence on Mr. Scott.
The Court relied on Friesen and Sharpe to extensively explain the harms and wrongs caused by possession and distribution of child sexual abuse material, in that it contributes to normalization, cognitive distortions and minimization of the damage such material causes, from paragraphs 144 through 156.
The Court found that, in Scott’s case, the trial judge erred in principle by failing to consider the many children that he had victimized and erroneously minimizing his moral blameworthiness; the trial judge had reasoned that most of Scott’s material did not depict real children. Scott told police in a statement that the defence agreed was admissible at sentencing that he collected material for three decades, and the psychologist who assessed him reported that he was a persistent user of child pornography since his teenager years, which increased his moral blameworthiness by showing that his actions were prolonged and repeated, thereby undercutting the trial judge’s conclusion that Scott had “previously good character” (para. 187). In addition, Scott’s “virtual and story material depicted or described especially harmful and wrongful activities, such as aggressive sexual activity, bondage, bestiality, and torture, which perpetuates messages that attack children’s very humanity and equality” (para. 189). The Court went on to conclude:
“I do not agree with the trial judge’s apparent conclusion that Mr. Scott’s characterization of his
actions as mere fantasies and claim that he did not “like” images depicting real children were mitigating. Rather, Mr.
Scott’s self-description of his actions reflected his distorted, myth-based thinking, minimized his possession of real
child images as a psychological crime, and overlooked the real children who he severely wronged and harmed.
Because he used images depicting children’s victimization to fuel those fantasies, they were an instrument of harm
to the real depicted children, and they increased the risks of inciting and facilitating the type of abuse of children
that Parliament sought to prevent by amending the Criminal Code to criminalize possession of child pornography.”(para. 191)
The court held that the Custom’s Act section was unconstitutional, however that did not entitle Pike and Scott to acquittals on the serious crimes against children with which they were charged. It allowed the Crown’s appeal from Pike’s acquittal, admitted the evidence that officers found on his digital devices, and ordered a new trial; for Scott, it also dismissed Scott’s appeal from conviction, granted the Crown leave to appeal the sentence the trial judge imposed on Scott but dismissed that appeal, to ensure that Scott served the rest of his house arrest sentence (paras. 195-196).
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